Alberta Lawyers' Assistance Society

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Cautionary Tales About Lawyer Discipline

Cautionary Tales About Lawyer Discipline

When I was a young lawyer, we learned a lot by osmosis. If you were in the right place at the right time, you heard stories that helped fill in the gaps in your legal knowledge. Nowhere was this more pronounced than in the realm of ethics and professional responsibility and, very importantly, what gets lawyers into trouble with the Law Society. In the Alberta legal profession, articling students are paired with a principal whose duties include education, but articling is only 12 months, and we don’t learn everything we need to know in one year. And some young lawyers set up their own practices soon after completing articles without the benefit of the senior partner down the hall. We need to talk about how we help both newcomers and lawyers who haven’t looked at our Code of Conduct for years to stay current and engaged about how we must conduct ourselves as professionals.

The need for inclusion in on-going discussions about ethics and professional responsibility came up at our last Red Mug Coffee Circle. If you don’t know what Red Mug Coffee Circles are, they are our online meeting place where students and lawyers of all vintages can gather in a free and non-judgmental space to talk about issues of mutual interest. We always have some of our senior Peer Support volunteers present who can share their wisdom. Everyone is welcome—please join us on a Monday at noon to experience this!

This week, one of our participants referenced a recent Law Society of Alberta Notice to the Profession about the effective disbarment of a lawyer (who will be called Lawyer 3 in this blog), and I realized that our articling students and young lawyers want a forum where they can learn more about the issues leading to a lawyer’s fall from grace. The participants who wanted to talk about this decision noted that Lawyer 3 had a spotless record for many years—which generated a conversation about how one can go from 0 to disbarment in a brief period of time as a result of bad decisions. The students and young lawyers were glad to have a chance to hear what others, especially but not exclusively senior lawyers, made of this decision.

There is often background knowledge behind these decisions that we need to share with newcomers. In this particular case, Lawyer 3, who was resigning in the face of discipline—a deemed disbarment--was fronting  work for a disbarred lawyer. And I am calling him Lawyer 3 because the original disbarred lawyer is Lawyer 1 in this blog, and a young lawyer who I will call Lawyer 2 was also disbarred or effectively disbarred for fronting operations for the same disbarred lawyer.

Our Code of Conduct is very clear about our obligations with respect to dealings with suspended and disbarred lawyers:

6.1-4 Without the express approval of the lawyer’s governing body, a lawyer must not retain, use the services of, partner or associate with or employ in any capacity having to do with the practice of law any person who, in any jurisdiction, has been disbarred, struck off the rolls, suspended, undertaken not to practise or who has been involved in disciplinary action and been permitted to resign and has not been reinstated or readmitted.

Even if a lawyer has a clean discipline record, there isn’t a lot of wiggle room for fronting work for a disbarred lawyer—this is likely exactly what the word “associate” means in this Rule.

Lawyers who have joined the Alberta legal community in the last seven years may not have the context about Lawyer 1 and his two cohorts who also lost their licenses and livelihoods.  At Assist, we do not believe in naming and shaming. However, when matters are on the public record and where the name of the disbarred lawyer is referenced in the Notice to the Profession, we believe that informing young lawyers about the dangers of associating with disbarred lawyers is essential.

So, here is today’s history lesson. In 2017, Lawyer 1 was a successful and prominent Edmonton criminal defense lawyer. He was disbarred  for, among other things, misappropriating trust funds and other funds and failing to conduct himself with integrity, but also for not being able to pay his staff, including lawyers, during the last month of his practice.  While many of us enjoy what we do much of the time, no lawyer wants to be in the position of working hard for your clients,  only to be stiffed on your pay!

The Law Society suspended Lawyer 1 on an interim basis while his disciplinary case proceeded. Most of us would accept that a suspension means that we can’t practice law, but Lawyer 1 apparently set a consulting/agency business advising clients resulting in an injunction from acting in lawyer-like capacities (rough language because I am not writing a legal brief!) affirmed by the Alberta Court of Appeal.

Ultimately, Lawyer 1 was disbarred. But this is not the end of the saga as Lawyer 1 apparently took another run at operating a business that looked a lot like practicing law. Associate Chief Justice Rooke of the Alberta Court of Queen’s Bench, as it then was, summarized the events leading to the previous injunction—note the references to five Practice Orders:

Mr. Beaver did not appeal being disbarred. Instead, Mr. Beaver clandestinely continued his legal practice. In Law Society of Alberta v Beaver2020 ABQB 321 [Beaver Practice #5], I concluded that Mr. Beaver had knowing, deliberately, and without excuse breached the Beaver Practice #1 Order and was in contempt of court on that basis. Specifically, Mr. Beaver had contacted a junior lawyer and recruited her to act as a false front to Mr. Beaver’s continued unlicensed legal practice.

The junior lawyer—Lawyer 2 in this blog--who acted as a false front was also disbarred. And now a senior lawyer—Lawyer 3-- has been disbarred for the same offence, fronting for the same disbarred lawyer.  While newcomers to our profession could read the recent resignation in the face of discipline notice and note that the lawyer had a clean discipline record, they can benefit from knowing the sordid history of why Lawyer 1 was trying to practice law under a false flag and how he took down two other lawyers.

The ad hoc discussion we had at Red Mug Coffee Circle was like a group of lawyers and students chatting by the water cooler or the coffee machine in a law firm or legal department.  Our junior colleagues had a chance to ask questions about aspects of the case that weren’t clear to them. Given that a young lawyer (Lawyer 2) was disbarred for her role in the Lawyer 1 saga, I want to make sure that all newcomers know how to look up discipline cases on the Law Society’s website, and then at Red Mug Coffee Circle on Monday, June 24th, we are going to talk about Understanding Discipline Cases and what we can learn from lawyers who go wrong. Not all stories are as dramatic as Lawyer 1’s.

And if I wear my Assist hat, as opposed to being an Alberta lawyer who doesn’t want insurance levies to increase, I note that Lawyer 1 apparently argued that medical and addiction issues contributed to his conduct in his sanctioning hearing. But when a lawyer engages in serious ethical misconduct, medical issues and addiction cannot always get you a pass or a reduced sanction—and our young lawyers need to know this, too. I hope that Lawyer 1 is receiving treatment and will return to full health in time. So, this is an important lesson—health and addiction are not “get out of jail free” cards. I urge all lawyers whose health or substance use is impacting, or could impact their practice, to seek help either through Assist or with their family doctor as early as possible.

Lawyers can never know too much about our profession’s Code of Conduct, but it can be hard to sit down and read the Code by itself.  In the pre-PREP bar admission course days, I taught Legal Ethics and I also used to teach a session on how to avoid getting in trouble with the Law Society. We all know that reading the Code of Conduct is challenging without fact scenarios. So, I created what I called The Suits Drinking Game—where I urged students to watch Suits or another TV legal drama and every time that lawyer characters engaged in questionable ethical conduct, they were to take a drink-- of coffee--and then look up what the Code says about these issues.

Here's an easy example: Harvey, the ever so cool senior lawyer on Suits, was attracted to his client in a divorce file. The client felt the attraction, as well  and said something along the lines of “I suppose you can’t date me because you are my lawyer” to which he replied “Sign these settlement forms and I will no longer be your lawyer”—as if your file and duties to your client were over just because the client signed documents! So, in the Suits (Coffee) Drinking Game, you would spot the issue—does the lawyer cease to be the lawyer by virtue of the client signing settlement documents? And if not, what do you have to do to cease to be the client’s lawyer? You can learn more about ceasing to act in Module 9.6 of the Law Practice Course. There are a lot of helpful resources to help you navigate and understand the Code.

But if a disbarred lawyer approaches you and suggests any type of association, please go directly to Rule 6.1-4 and tell the disbarred lawyer that you respect yourself and your profession too much to engage with them. And have a drink of coffee for spotting the issue and the correct resolution.

And if anyone ever approaches you with something that sounds a bit shady—or something that sounds too good to be true—stop and read the Code.

Alberta lawyers are very fortunate to have access to confidential and free advice from the Practice Advisors at the Law Society, three lawyers with extensive practice experience and specialized knowledge about ethical issues. If you are ever unsure how to apply guidance from the Code of Conduct, you can contact the Practice Advisors. They are very knowledgeable and your discussions with them are confidential, meaning that they can’t disclose information conveyed to them to any other part of the Law Society.

If you are free on Monday June 24th, please join us at Red Mug Coffee Circle when we will talk about what we can learn from reading Law Society discipline cases. We will talk about how to access decisions online since not all decisions result in Notices to the Profession. At Assist, we have compassion and empathy for lawyers who end up in the disciplinary process and we provide psychological services and peer support to lawyers at all points in the discipline process from complaints through to sanction hearings. But making sure that young lawyers are learning where other lawyers have gone wrong is a service that we can provide for free.

If there is sufficient interest, we will schedule discussions periodically and if someone requests that we discuss a particular case, we will suggest that everyone read it. While some lawyers who come to Red Mug Coffee Circles serve as adjudicators for the Law Society or as legal counsel for lawyers in the discipline stream, we will only discuss facts contained in reported decisions or they will recuse themselves, and we will keep our remarks professional at all times. We truly believe that for most discipline cases, the maxim “But for the grace of God (and a careful reading of the Code)  go I” applies, and we will approach these discussions respectfully.

If you have questions about a reported decision, please email it to me. I will send it to some of our senior peer support volunteers so they can read it in advance too. Please note that we are not issuing definitive legal opinions but rather sharing our ideas about how we can avoid ending up on the wrong side of the law—we will be sharing information, not advice! Our world is increasingly complex so let’s work together to ensure that all articling students and junior lawyers have access to a safe and supportive space to discuss reported professional responsibility issues.

See you soon,